Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 14, 2018 at 1:08 pmThe Business Man is a registered user.

My observation,

Given that this Council member worked to staff the Rental Housing Committee with the wrong understanding that it was fine to put people with a conflict of interest into a JUDICIARY position. The City has been and still acts not on the code of conduct but the private interests of those who the members want to advocate.

This person also has acted in violation of the CSFRA because the City Council MUST staff the RHC to the amount of persons defined in the City Charter. The fact is that the City Charter states:

“Section 1709. - Rental housing committee.

(a) Composition. There shall be in the City of Mountain View an appointed Rental Housing Committee comprised of Mountain View residents as set forth in this Section. THE COMMITTEE SHALL CONSIST OF FIVE (5) COMMITTEE MEMBERS APPOINTED BY THE CITY COUNCIL, AND AN ALTERNATE COMMITTEE MEMBER. The alternate Committee member shall be permitted to attend all Committee meetings and to speak, but not be authorized to vote unless a regular member of the Committee is absent at that meeting or is recused from voting on an agenda item. There shall be no more than two (2) members of the Committee that own or manage any rental property, or that are realtors or developers. Anyone nominated to this Committee must be in compliance with this Article and all other local, state and federal laws regulating the provision of housing. Annually, the Committee shall elect one of its members to serve as chairperson.”

Doesn’t the term SHALL CONSIST OF mean that the RHC cannot act without a full 6 member committee? The term SHALL is a requirement and is not subject to interpretation. The City Council would have more flexibility if the term MAY CONSIST OF was used. At this time it is short the alternate. The City Council VIOLATED the City Charter by trying not to staff the required 6 members.

On top of that please read the following

Given that the RHC is a judicial body, doesn’t that mean that the RHC members must act without the appearance of bias under the California and U.S. 5th amendment due process? This is what I understand from the article titled “Understanding Caperton: Judicial Disqualification under the Due Process Clause” in the McGeorge Law Review, Volume 42, Issue 1 Symposium: Judicial Ethics and Accountability: At Home and Abroad, Article 5, 1-1-2010, Dmitry Bam, Stanford Center on the Legal Profession” Found here (Web Link)
:
“C. Due Process Clause

1. Pre-Caperton
Although the Constitution's Due Process Clause guarantees litigants a right to have their cases heard and decided by fair and impartial judges,5 and the Supreme Court has periodically held that prejudice or bias by the presiding judge violates the litigant's constitutional rights,2 it has long been thought that the Constitution mandates disqualification only in very limited circumstances.27 The Supreme Court has explained that "matters of kinship, personal bias, state policy, [and] remoteness of interest would seem generally to be matters merely of legislative discretion" rather than a constitutional recusal floor. 28 And until Caperton, it was unclear whether improper appearances alone could rise to the level of a due process violation. In fact, historically, there have been only two types of cases where the Due Process Clause was held to require recusal.

First, the Due Process Clause has been read to require disqualification when the judge has a financial interest in the litigation. The leading case is Tumey v. Ohio.29 In Tumey, an Ohio statute authorized judges to receive court costs assessed against convicted defendants, but not against those who were acquitted.o The Court held this incentive scheme created too much partiality and invalidated the statute on due process grounds, explaining that due process is violated when a judge is "paid for his service only when he convicts the defendant."" This result is neither controversial nor surprising-a judge should not be incentivized to reach a particular result.32

However, a judge's interest need not be a direct financial one. For example, in Ward v. Village of Monroeville, the Court held that a mayor may not preside as a judge over ordinance violations and traffic offenses when the court-assessed fines for such transgressions would be contributed to the town's budget.33 While the mayor's salary did not depend on his conviction rate, the mayor still had a financial incentive to convict-he was responsible for the town's revenue production.4 That incentive, the Court held, is inconsistent with due process.

Similar incentives were held to violate due process in Aetna Life Insurance 36 Co. v. Lavoie. There, Alabama Supreme Court Justice Embry ruled in favor of the plaintiff on his bad-faith claim against Aetna.37 It turned out, however, that Justice Embry himself had filed two comparable actions against other insurance companies making similar allegations and seeking punitive damages while the plaintiffs action against Aetna was still pending." The Supreme Court held that Justice Embry's refusal to recuse himself was in violation of the Due Process Clause. 9 As with Tumey and Ward, the judge's decision furthered his own financial interests, allowing him to act as "a judge in his own case."

Second, the Court has held that due process forbids a judge from wearing too many hats. For example, in In re Murchison, the Court found a violation of the Due Process Clause although the judge did not have a personal pecuniary interest in the outcome of the case.4 ' Rather, the judge had served as a one-person grand jury before presiding over a hearing to determine that two of the testifying witnesses were guilty of contempt.42 This procedure, the Court held, ran afoul of 43 due process.

Mayberry v. Pennsylvania is also instructive.4 There, the defendant verbally attacked the presiding judge45 and continuously interrupted court proceedings to the point where the defendant had to be removed from the courtroom.4 The Supreme Court held that when the defendant is charged with criminal contempt, he "should be given a public trial before a judge other than the one reviled by the contemnor." 4 7 2.

Post-Caperton

Such was the state of recusal law under the Due Process Clause until Caperton v. A.T. Massey Coal Co. 4 8 In Caperton, West Virginia Supreme Court Justice Brent Benjamin cast the deciding vote to overturn a trial court's decision against the appellant, Massey Coal Company.49 Before Justice Benjamin was elected to the court, Massey's CEO, Don Blankenship, provided generous support to his election campaign. Indeed, Blakenship contributed more to Benjamin's campaign than all other donors combined (a total of approximately $3 million), all while his lawyers were preparing the Caperton case for appeal. After refusing Caperton's recusal requests, Justice Benjamin voted with the majority in a 3-2 decision overturning the trial court's verdict."

The United States Supreme Court reversed; holding that Justice Benjamin's failure to recuse himself violated Caperton's right to due process." In reaching this decision, the Court relied on the principles announced in its prior decisions and applied them to the facts of the case at hand.54 Quoting Tumey, the Court once again announced that due process requires judicial recusal when the circumstances "offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true."" The Court explained that "when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or 56 imminent," the risk of actual bias violates due process.

After Caperton, little doubt remains that recusal is required under the Due Process Clause, even when the judge has no personal interest in the outcome of the litigation and did not act as both a judge and a prosecutor or witness in the same case. But the question remains: What about appearances? Can an appearance of bias rise to the level of a due-process violation? 7

III. DUE PROCESS AND THE "APPEARANCE OF BIAS"

A. Are Appearance of Bias and Probability of Bias Synonymous? As Part II shows, recusal for almost all judges in the United States-at the state and federal levels-is governed by an appearance-driven standard. Of course, actual bias is prohibited as well, but rarely does a disqualification inquiry turn on a judge's actual bias. This is in large part due to the fact that judges deciding their own recusal motions tend to downplay the existence of actual bias. Furthermore, the appearance-of-bias test does not require parties to argue for actual bias." But does the Due Process Clause require only an absence of actual bias? Or does it prohibit even its appearance? Justice Benjamin himself took the position that due process does not require recusal based solely on the appearance of impropriety and at least some state courts agreed”

In Caperton, the Supreme Court was asked to resolve the issue. But by the time the case came up for oral argument, it was unclear whether Caperton had abandoned the argument that an appearance of bias alone was enough to trigger a due process violation. During oral argument, two interesting exchanges about the role of appearances under the Due Process Clause took place between the justices and counsel for Massey. First, Justice Stevens expressed incredulity that appearances alone could not rise to the level of a constitutional violation.

JUSTICE STEVENS: Mr. Frey, is it your position that the appearance of impropriety could never be strong enough to raise a constitutional issue?

MR. FREY: Well, we might have appearance of impropriety overlapping with conditions that would justify

JUSTICE STEVENS: I'm assuming appearances only. Are you saying that appearances without any actual proof of bias could never be sufficient as a constitutional matter?

MR. FREY: I think we are.

JUSTICE STEVENS: Is that your position?

MR. FREY: We are saying that the Due Process Clause does not exist to protect the integrity or reputation of the State judicial systems.

JUSTICE GINSBURG: Why

JUSTICE STEVENS: That's not an answer to my question.

MR. FREY: Well, I thought I said –

JUSTICE STEVENS: Supposing, for example, the judge had campaigned on the ground that he would issue favorable rulings to the United Mine Workers, and the United Mine Workers campaigned, raising money saying, we want to get a judge who will rule in our favor in all the cases we're interested in. Would that create an appearance of impropriety?

MR. FREY: Well

JUSTICE STEVENS: Or take another example. The Chief Justice asked what if there are ten members of a trade association and would all-and they all contributed to get a judge to vote in their favor in a case that involved a conspiracy charge among the-charged the ten of them for violations of the Sherman Act, something like that. And if all ten of them raise money publicly for the very purpose of getting a judge who would rule favorably in their favor, that would clearly create a very extreme appearance of impropriety. Would that be sufficient, in your judgment, to raise a constitutional issue?

MR. FREY: If you were-if-if you thought there was no basis for believing there was actual bias, but it looked bad

JUSTICE STEVENS: No, it would meet the test in the-in the judges' brief of an average judge would be tempted under the circumstances. That's the test that the Conference of Chief Justices judges

MR. FREY: That I don't

JUSTICE STEVENS: And do you think that could ever, just appearance, could ever raise a due process issue?

MR. FREY: No, I don't think just appearance could ever raise a due process issue.

Later in the argument, Justice Ginsburg suggested that the two phrases appearance of bias and probability of bias-are synonymous.

MR. FREY: I don't-I think, first of all, the Petitioner has not advanced on the merits in this case an appearance standard. A lot of the

JUSTICE GINSBURG: Would you please clarify that? Because I was taking appearance, likelihood, probability as all synonyms . . . .6

The questioning suggests that Justices Stevens and Ginsburg-two of the five Justices in the Caperton majority-believe that (a) the mere appearance of bias can rise to the level of a due process violation and (b) that "appearance of bias" and "probability of bias" are interchangeable terms. Perhaps as a consequence, some scholars and commentators read the majority opinion in Caperton to hold that the appearance of impartiality may violate the Due Process Clause.62

Such a reading is incorrect. The majority opinion focuses not on appearances but rather on the probability that Justice Benjamin is actually biased.63 And probability of bias is not the same as appearance of bias, although many commentators-and even Justice Ginsburg-conflate the two. But the difference is crucial: An appearance-based standard focuses on the public's perception of the fairness of the court, while a probability-based standard centers on a reasonable judge's likelihood of actual bias. The subject of the former inquiry is a member of the public; the subject of the latter inquiry is the judge in question. These are two very different tests, and the relevant factors in determining whether the test is met may be wildly different.

Two reasons support the view that the Court's majority opinion adopts the latter approach." First, the Court makes little mention of appearances throughout its opinion. Instead, it embraces the old constitutional test that focuses on "whether the contributor's influence on the election under all the circumstances 'would offer a possible temptation to the average ... judge to. . . lead him not to hold the balance nice, clear, and true."' 6 In other words, the spotlight is directly on the judge, not on the observations of the public, which is consistent with a probability-based disqualification standard. The majority opinion only uses the word "appearance" in two contexts: First, when discussing Justice Benjamin's own decision," and second, when explaining that most states have implemented an even more stringent, appearance-based standard for recusal." In fact, the Court explicitly stated that the states' appearance-based codes "provide more protection than due process requires."

Second, the majority explained that "[n]ot every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal .... ."9 Rather, the Court held Caperton is "an exceptional case."O But as explained in greater detail below, there is nothing exceptional about this case from an appearance-of-bias perspective. Had the Court intended to adopt an appearance-based test for judicial recusal, Blankenship's contributions to Justice Benjamin would not be seen as extraordinary because even minor contributions can create an appearance of bias. “

To me, there is something seriously wrong happening still in Mountain View.

Posted by frisbee
a resident of Sylvan Park
on Sep 14, 2018 at 2:30 pmfrisbee is a registered user.

If we're giving up so much to make it possible to put a school there, the people in that area deserve a local elementary school so their young children don't have to go across San Antonio and El Camino every day to Santa Rita. We should not put a rich charter school in the middle of our poorest community. Bullis should go to Covington, which is large enough for increased enrollment and also just reopened so it hasn't had people going to it for generations.

That logical decision could put the Councilman in conflict, since that decision would impact his school, which is also on the Covington site.

Make this school a local Elementary, and move Bullis to Covington -- or don't provide the funds for the new school.

Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 14, 2018 at 2:56 pmThe Business Man is a registered user.

Robyn,

I understand it is difficult to read. But I simply want the public to have information to understand. I expect that those who are committed to act like Tom Jefferson claimed "liberty is the cost paid by eternal vigilance"

If you read my information, you can find a lot to consider. I do not force anyone to agree with me, I just want the public to male up its own mind.

The city attorney had to ask the FPPC!? Jeez. Doesn't even pass the smell test. Nothing about this situation does. Why are we even considering this massive subsidy (in development rights) without demanding that it be a neighborhood school?

Posted by William Hitchens
a resident of Waverly Park
on Sep 14, 2018 at 4:33 pmWilliam Hitchens is a registered user.

McAlister should recused himself --- if necessary at the insistence of other members of the Council and the City Attorney. This passes neither the stench test nor the Duck Test. I know that our school boards are intellectually challenged, but the City Council and the City Attorney too? I know that they're under immense pressure due to ideologically driven, willful and gross over-development, but can't they insist upon due process and transparency for all of their decisions?

Posted by Financial Incentive
a resident of another community
on Sep 14, 2018 at 4:57 pm

There is one issue of following the law about presumed conflicts of interest. There is a separate issue about ACTUAL conflicts of interest. In this case, McAlister shares in the profits of Stepping Stones. LASD gives Stepping Stones below market rent to the tune of $200K per year. Obviously there are more profits in this case. So there is an actual financial incentive flowing from LASD to McAlister to do as they ask. LASD could cancel the lease at any time without reason. They can easily cook up a pretext to hide the true reason. So LASD has a cudgel to use if they don't like McAlister's vote. So, it's not theoretical, it's a pay-off. Think about it. The city attorney should inquire about the below market nature of the rent.

Posted by Nothing good
a resident of another community
on Sep 14, 2018 at 7:31 pm

@Financial Incentive- what you say is definitely true but the benefits for McAlister are less indirect than that. If BCS doesn’t move to San Antonio the likely alternative site is Covington school and if that happens the preschool will be evicted. McAlister definitely has motive to encourage BCS NOT to move into Covington.

One has to wonder why any MV resident would support this deal? Zero benefit to MV but they will foot a segment of the bill. Also the traffic will more severely impact MV than LA.

Posted by Out Of Line Folks
a resident of Rex Manor
on Sep 14, 2018 at 10:25 pm

PUT IN THE PARK AND RECREATIONAL AMENITIES.
THAT IS WHAT ANY SCHOOL WILL BRING! BUT IF THERE IS NO SCHOOL,,,THERE ARE NO RECREATIONAL AMENITIES!
So stop the school type whinning! And get with the big picture!

Some quote legal text as though they were an attorney while others weave false machinations but the end result is those talking and writing don't know the law or the facts.

McAlister has done nothing wrong especially when the preschool was moved BY LASD FROM BLACH TO CONVINGTON! LASD made the appearance of an issue, not McAlister!

McAlister is correct and should NOT RECUSE himself from these discussions and/or actions.

Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 15, 2018 at 2:27 pmThe Business Man is a registered user.

In response to Out Of Line Folks you said:

“Some quote legal text as though they were an attorney while others weave false machinations but the end result is those talking and writing don't know the law or the facts.”

My first question, what education make you an authority to claim “is those talking and writing don't know the law or the facts”

Simply put, you do not present anything to support your claim. You only try to claim others don’t understand the picture. Again this section of the discussion I presented is simply on the point:

“JUSTICE STEVENS: Mr. Frey, is it your position that THE APPEARANCE OF IMPROPRIETY COULD NEVER BE STRONG ENOUGH TO RAISE A CONSTITUTIONAL ISSUE?

MR. FREY: Well, we might have appearance of impropriety overlapping with conditions that would justify

JUSTICE STEVENS: I'm assuming appearances only. Are you saying that appearances without any actual proof of bias could never be sufficient as a constitutional matter?

MR. FREY: I think we are.

JUSTICE STEVENS: Is that your position?

MR. FREY: WE ARE SAYING THAT THE DUE PROCESS CLAUSE DOES NOT EXIST TO PROTECT THE INTEGRITY OR REPUTATION OF THE STATE JUDICIAL SYSTEMS.

JUSTICE GINSBURG: Why

JUSTICE STEVENS: That's not an answer to my question.

MR. FREY: Well, I thought I said –

JUSTICE STEVENS: SUPPOSING, FOR EXAMPLE, THE JUDGE HAD CAMPAIGNED ON THE GROUND THAT HE WOULD ISSUE FAVORABLE RULINGS TO THE UNITED MINE WORKERS, AND THE UNITED MINE WORKERS CAMPAIGNED, RAISING MONEY SAYING, WE WANT TO GET A JUDGE WHO WILL RULE IN OUR FAVOR IN ALL THE CASES WE'RE INTERESTED IN. WOULD THAT CREATE AN APPEARANCE OF IMPROPRIETY? “

MR. FREY: Well

JUSTICE STEVENS: Or take another example. THE CHIEF JUSTICE ASKED WHAT IF THERE ARE TEN MEMBERS OF A TRADE ASSOCIATION AND WOULD ALL-AND THEY ALL CONTRIBUTED TO GET A JUDGE TO VOTE IN THEIR FAVOR IN A CASE THAT INVOLVED A CONSPIRACY CHARGE AMONG THE-CHARGED THE TEN OF THEM FOR VIOLATIONS OF THE SHERMAN ACT, SOMETHING LIKE THAT. AND IF ALL TEN OF THEM RAISE MONEY PUBLICLY FOR THE VERY PURPOSE OF GETTING A JUDGE WHO WOULD RULE FAVORABLY IN THEIR FAVOR, THAT WOULD CLEARLY CREATE A VERY EXTREME APPEARANCE OF IMPROPRIETY. WOULD THAT BE SUFFICIENT, IN YOUR JUDGMENT, TO RAISE A CONSTITUTIONAL ISSUE?

MR. FREY: If you were-if-if you thought there was no basis for believing there was actual bias, but it looked bad

JUSTICE STEVENS: NO, IT WOULD MEET THE TEST IN THE-IN THE JUDGES' BRIEF OF AN AVERAGE JUDGE WOULD BE TEMPTED UNDER THE CIRCUMSTANCES. THAT'S THE TEST THAT THE CONFERENCE OF CHIEF JUSTICES JUDGES”

Given that McAlister put Tom Means on the RHC knowing that Tom Means made a living by being paid to advocate against rent control. And that McAlister knowingly advocated placing people on the RHC with no intent to follow the law, but rather find any illegitimate means to violate it. McAlister is responsible for such conduct. You went on to say:

“McAlister is correct and should NOT RECUSE himself from these discussions and/or actions.”

Please present some kind of evidence or case laws that support your opinion? Without it, it is only your opinion. You have a right to that opinion. But you have no AUTHORITY to force it on the Citizens of Mountain View. I only want the citizens to be provided some independently validated information for their consideration. You want to dictate to the City what you want. I am not even trying to do that.

Posted by Gary
a resident of Sylvan Park
on Sep 15, 2018 at 6:49 pmGary is a registered user.

@Out of line folks. The park part is not worth $100 million of city money. All the Council needs to do is to condition the gift to LASD on NOT putting BCS there. The school district will still be happy to get the money. If the school district could later come up with a good reason the City Council should waive such a condition, that good reason could be presented down the road. But when you give away money without conditions, the money is GONE and you have no control over how it is used. That is why 3 councilmembers are only willing to give the city money away conditionally. And no BCS at the site should be a condition. Not because BCS is no good. But because it is full and Mountain View would benefit far more from a school for nearby students.

Posted by Kick out the corruption
a resident of Old Mountain View
on Sep 15, 2018 at 9:17 pm

McAllister is corrupt and lining his pockets at our children's expense. Shame on him. Check where he got his campaign money.

Hint: you can guess by how he votes and who he appointmented to the RHC.

He should retire before we kick him off the council. He gets away with think because there are two others in the same boat. Shady campaign funds that came in... after the election. To bad they are not up for reelection this round. We can't get rid of them soon enough.

I wish the Voice would look into the campaign funds candidates have received, plus who the last round of candidates too large sums from after being elected. Special interests are buying our small town through these corrupt officials.

These people do not represent the best interests of our city. They are greedy and uncompassionate. They need to go now!

Posted by Charter Benefit
a resident of another community
on Sep 16, 2018 at 2:26 pm

I think that obviously McAlister believes the new site will actually HARM Bullis Charter, so at least the person objecting to any aid to them has reason to support McAlister. How can anyone say that this new school benefits the charter school? How? What does it give them that they don't already have? It has nothing to do with them. Just don't come complaining when you get 900 kids traveling into to school each day, because that's literally the whole idea.

McAlister keeps talking about busing, but that's not even practical with a school serving kids residing all over a 10 square mile school district. He should be focusing on bus service to the local kids in the area who live in a single 0.25 square mile area and travel each day to 3 different schools. LASD could provide bus service for them, and it would work.

The question is, mixed in with this idea of try to sabotage Bullis Charter, are [Portion removed due to disrespectful comment or offensive language] actually doing more harm to the kids that attend the LASD schools, about 680 of them?

Posted by Gary
a resident of Sylvan Park
on Dec 6, 2018 at 2:42 amGary is a registered user.

Catch, John McAlister now admits to being an owner (through a corporation) of the preschool-daycare at Covington School in Los Altos. It is a major source of income for McAlister and its profitability depends upon its lease from the Los Altos School District. That lease is set to expire soon - and could be terminated by the LASD on short notice. McAlister is under the thumb of the school district. On the flipside, giving $100 million of city money and assets to the LASD would be appreciated. McAlister might well get a more favorable lease and perhaps expand his preschool to other campuses. Of course McAlister has a conflict of interest and he continues to insist upon pursuing it. It reminds me of Donald Trump and the Russians.

Posted by SRB
a resident of St. Francis Acres
on Dec 6, 2018 at 11:49 pmSRB is a registered user.

@Gary

Wanted to address that canard that I keep hearing:

"giving $100 million of city money and assets to the LASD"

The Transfer of Development Rights is private developers money, it's not tax money (you and I don't contribute a penny of it), it's also not City money (not one penny is or ever will be in City coffers)

The Park funds money (23M) is not tax money either (you and I don't contribute a penny of it), it's a special pot of City money filled by park fees paid by developments -many of them in the San Antonio area- instead of providing parks -almost none of them in the San Antonio Area-.

So school and council politics aside, seems like a great once in forever deal for Mountain View to finally get plenty of park space, sports facilities, a school acting as a community anchor in an area that has taken the brunt of developments in Mountain View.